Samsung Electronics
Comp., Ltd.'s (SEO:005930),
one of the world's top two cell phone makers and tablet makers is literally
fighting for its life in court [1][2],
under legal attack from Apple, Inc. (AAPL).

I. Did Apple "Steal" its Ideas From Science Fiction?

Apple accuses Samsung of "slavishly" copying its smartphone designs.
Specifically it cites its U.S. Design Patents D618,677 and D593,087 on iPhone's design and Design Patent D504,889on the iPad's design. Apple's
patents basically claim ownership of rectangular touch-screen devices with a
minimalist interface with few physical buttons. Its patent specifically
says that it is "not limited to the scale shown herein" -- which
Apple says places larger devices like the Samsung Galaxy S smart phone on the
hot seat. Apple filed the iPhone patents in November 2008 and July 2007,
and the iPad patent in March 2004.

Apple has expressed no desire to license the patents in question. It has
indicated that it would rather remove these "willful copies" from the
market.

Samsung has pulled out a rather unique defense in the case, citing a
scene in the 1968 Stanley Kubrick adaptation of the Arthur C. Clarke novel 2001:
A Space Odyssey which shows a device remarkably reminiscent to the
iPad making what appears to be a video call.

In one its U.S. court cases with Apple, Samsung is submitting the evidence as
proof of prior art -- a common way to invalidate patents.

While it may at first sound outlandish to use a work of science fiction in
court, it's important to consider that in 2004, when Apple filed the iPad
patent, the device was very much science fiction. Apple had to wait five
years for real world electronics to catch up.

And there's some precedent of successes with science-fiction prior art.
Robert Heinlein's 1930s-era writings were used in court in the 1960s to
prevent people from patenting the waterbed. It's also believed that
fictional examples are an important reason why Klausner Technologies reportedly conceded
to a lesser settlement, in its 2007 case against
Apple where it sought $360M USD in damages for willful infringement.

We feel that Samsung should consider submitting several video clips [1][2][3] from Star Trek: The Next
Generation as evidence as well. Numerous minimalist, thin tablet
devices appeared on the show and its movie adaptations in the late 1980s and
1990s.

In one scene from 1996's Star Trek: First Contact, character Geordi
LaForge hands Zefram Cochrane a device that looks remarkably similar to
the iPad, though only the back is shown. Another scene from 1989's
"The Bonding" shows the front of an LCD touch-screen iPad-like device
with a relatively minimalist button configuration.

Apple chief executive and co-founder, Steven P. Jobs has bragged
about his mastery of stealing ideas from others, stating [video],
"Picasso had a saying - 'Good artists copy, great artists steal.' And we
have always been shameless about stealing great ideas."

And he has said several times that he is a fan of Star Trek.
For example, when unveiling the iPhone 4, he commented, "I grew up
here in the US with The Jetsons and Star Trek and
communicators, dreaming about video calling, and it's real now!"

II. Samsung Must Deal With Technology Patents as Well

Apple's design patents are particularly troublesome given the apparent amount
of prior art and the fact that it itself fictionalized a device that it would
only later have the technology to commercially implement, when filing the
iPad's design patent in 2004.

Also troubling about the design patents is Apple's selective enforcement.
Notably Apple has only gone after smart phones and tablets
using Google Inc.'s (GOOG) Android operating
system, while ignoring similar manufacturer Windows Phone 7 designs. One
possible reason for this is that Apple and Microsoft have some cross-licensing
agreements and Microsoft Corp. (MSFT) owns a vast amount
of user interface intellectual property, so Apple may be scared of trying to
bully it in court, like it has Google.

However, even if Samsung can get by the trio of American design patents,
Apple's case also references technology patent 7,469,381, which covers
touch interactions and animations of page-turning elements of a graphical user
interface.

Nokia Oyj. (HEL:NOK1V)
during its
legal battle with Apple succeeded in getting a re-review of this
patent with "the best prior art references Nokia could find".
Unusually, all 20 claims were upheld. (Typically during re-reviews,
at least some claims are invalidated.)

Again, there may be prior art here, but Samsung will have to dig to find
it.

III. Samsung Dealt Another Setback in Europe

In Europe Apple has cases pending in Netherlands and German European Union
courts. Last week Apple was caught apparently photoshopping pictures [1][2] for
its court exhibits, offering visual representations that confusingly make
Samsung different shaped devices appear as if they have the same dimensions as
the iPad and iPhone.

Apple supporters are pointing to Apple's U.S. court filing to support their
claims that Apple was in the clear. In the filing Apple says that the
"differences between the Samsung Galaxy Tab 10.1 and Apple’s patented
design are trivial and legally insignificant: the aspect ratio, thickness, and
edge profiles do not appear to be absolutely identical in the Tab 10.1 and
Apple’s patented design."

Apple claims prior art is on its side, writing, "But as discussed above, a
product infringes a design patent even if it differs in several details, so
long as an ordinary observer would view the overall appearance to be
substantially the same. These minor differences do not affect the substantial
similarity between Samsung’s tablets and Apple’s claimed design when viewed as
a whole, especially in light of the prior art."

Apparently the presiding Netherlands judge agrees. In lieu of a final
verdict to be published today, a Hague judge banned
the marketing of the Galaxy family of Samsung devices and the Samsung
Ace smart phone in the Netherlands. It is unclear whether sales will be
banned as well.

Samsung was found in violation of Apple's European Patent (EP) 2,058,8682,059,868, which
describes a "method of scrolling," EP 2,098,948 which deals with a
"recording a flag in connection with multiple screen taps," and EP
1,964,022, a dragged slider phone unlocking GUI element.

Apple holds similar patents on this technology in the U.S., which it's using in its U.S. lawsuit.

Update: As a Dutch-fluent reader pointed out (Thanks Entropy78!), initial sources (Engadget) were incorrect in posting the patents EP '948 and EP '022 were violated.

The ruling actually points out that EP '022 had already been ruled null and void and thus was not suitable for the case. Further, it found that Samsung did not violate EP '948. It does ban sales and marketing of Samsung's Android 2.3 "Gingerbread" devices, as it find them solely in violation of patent EP '648.

Samsung violates patent EP 868 with its Galaxy S, S2 and Ace model, but not with its Galaxy tablets. Samsung does not violate patent EP 948, while patent EP 022 was considered invalid. There was no violation by Samsung on any of Apple's design or copyright ...

The EP '648 violation comes due to the scrolling functionality in Gingerbread devices' gallery. Honeycomb devices, such as the Galaxy Tab 10.1 are not affected.

The judge goes on to write "...de kennelijk eenvoudig door haar uit te voeren aanpassing...", "meaning: it should be easy to technically circumvent the one patent it (Samsung) was found to violate."

Samsung representatives reportedly toldTweakers.net that they would be removing the scrolling feature from their smart phones, which should allow them to continue sales and marketing in the Netherlands.

Thus in the big picture Apple did win a minor victory in potentially temporarily halting sales of some Samsung phones, if only for anywhere from a few days to few weeks. Further the case invalidates Apple's claim that Samsung violates Apple's patents on multi-tap recording GUI interactions -- patents which are used in multiple other Apple suits against various Android manufacturers internationally.

Thus in the big picture the ruling is somewhat of a loss to Apple.

The take home message seems to be that --in European courts, at least -- Apple may be able to pester Android manufacturers into minor updates, but its dreams of removing their devices from the market are unlikely to be realized.

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